REPs Not SEPs: A Reasonable and Non- Discriminatory Approach to Licensing Commitments

A lot of ink has been spilled on the subject of RAND commitments in recent years.
Lawyers and judges have offered opinions on the proper methodology for calculating RAND royalties, regulators have sought to clarify the circumstances under which pursuing injunctive relief comports with a RAND commitment and competition law, and academics have suggested frameworks for arbitrating RAND license disputes. Seemingly everyone has extolled the virtuous role that RAND commitments play in fostering industry standards and interoperability and condemned the opportunistic breach of such commitments.

Much of that analysis and discussion, however, has been unduly narrow, with commentators focusing on RAND commitments made to formal, collaborative standard-setting organizations (“SSOs”) and which encumber so-called standard-essential patents (“SEPs”). Indeed, much of the discussion has focused on the even narrower subset of SEPs related to smartphones and other wireless technology. Yet SEPs are merely a subset of the larger category of patents that are encumbered by RAND commitments, and patentees make such commitments in a variety of settings—not just in the context of formal SSO standard-setting efforts.